Sunday, August 11, 2013

Imposing civilian prosecutors and judges on an insular
institution like the military is a recipe for trouble

The amendment to the Code of Court Martial Procedure (軍事審判法)
passed on Aug. 6, whereby military personnel accused of crimes will now be
tried in civilian courts, may be an “extremely big change”
to the legal system, as some commentators have put it, but don’t let the hype
deceive you: it is highly unlikely that the new regulations will help prevent
future abuse in the armed forces — in fact, they could make matters worse.

It is rightly tempting to regard the amendment, along with
the end to the court martial system (at least in peacetime), with optimism.
After all, the poor handling by military prosecutors of the case of Hung
Chung-chiu (洪仲丘), who died on July 4 after being mistreated by his
superiors, was the direct cause of mounting pressure on the government to
reform the system under which such cases are investigated and tried.

The lack of transparency, along with well-founded suspicions
that members of the armed forces are protecting one another, would suggest that
the best way to handle abuse in the military is to bring in an external
regulatory agency — in this case, civilian prosecutors and courts, who do not
have the institutional and personal binds that insulate members of the armed
forces.

The hope is that investigators, prosecutors and judges who
have no personal stake in the military will be able to go where their
counterparts in the forces would not, for one reason or another, dare venture.
Civilians will therefore be able to cast a light into the darkness of the
military clique and, it is hoped, end the corruption and abuse that has been
only partly exposed via Hung’s unfortunate fate and that of others who have
come out since.

However, here’s the catch: There is absolutely no guarantee
that the “extremely big change” will perform the miracles that are expected of
it. In fact, as anyone who has worked in secretive government communities such
as the military or intelligence will tell you, the introduction of external
“meddlers” — and this is exactly how civilian prosecutors will be perceived — will
likely make it more, not less, difficult to adequately investigate and try
crimes committed in the ranks.

The reason is simple: Agencies involved in matters of
national security are not, by their nature, altruistic, and will often refuse
to share information with others on the grounds, often valid, that doing so
would compromise national security. The classification of information and the
use of restricted areas used by defense and intelligence agencies are enough to
prevent access to individuals or institutions that do not have the proper
clearances, especially when the latter come from the civilian side.

Such agencies are already parsimonious in their sharing of
information with the arms-length (albeit still “internal”) oversight bodies —
military tribunals, review committees, etc — that have been set up to monitor
their activities. Giving the responsibility to investigate and try crimes to
external civilians will only compound the problem.

There will never be a guarantee that civilians will have 100
percent access to the material and evidence they need to investigate and try a
case; historical precedent, including this writer’s personal experiences in the
intelligence community, shows that perfect cooperation does not occur, and that
institutions involved in matters of national security will be very selective in
what they pass on to civilians. What is worse is that aside from not being
given all the material, there is no way for civilians to know whether something
(and if so, what) is being kept from them. In other words, they cannot know
what it is that they don’t know.

What has been hailed as a rare instance of bipartisan action
in the legislature in modern times could end up ensuring that the people who
are put in charge of investigating crimes in the military are unable to do so.
Facing a mounting scandal, legislators and government officials were
understandably compelled to do something, and the revisions to the Code are
just that — something.

However, this is not the remedy that the situation calls
for. What is required is thorough reform within the military court system and a
direct assault on the longstanding practices in the armed forces that make
abuse and corruption possible in the first place. Undoubtedly, doing so means
tackling vested interests within an institution that civilians have always
apprehended. But if the rot that threatens to collapse this indispensable
component of the nation’s ability to defend its way of life is to be cleansed
once and for all, politicians and legislators will have to overcome their fears
and do what is necessary. Half-baked measures adopted for nothing more than
political expediency will not suffice. (Photo by the author)